Nardos and Madera

[2018] FCCA 2607

FEDERAL CIRCUIT COURT OF AUSTRALIA

NARDOS & MADERA [2018] FCCA 2607

Catchwords:
FAMILY LAW – Parenting – application to set aside orders – time spent – allegations of family violence.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Rice & Asplund (1979) FLC 90-725

Applicant: MR NARDOS

Respondent: MS MADERA

File Number: ADC 4651 of 2012

Judgment of: Judge Young

Hearing date: 21 August 2018

Date of Last Submission: 21 August 2018

Delivered at: Adelaide

Delivered on: 21 August 2018

REPRESENTATION

Counsel for the Applicant: Mr Nguyen

Solicitors for the Applicant: Son Nguyen Barrister & Solicitor

Counsel for the Respondent: Mr Robinson

Solicitors for the Respondent: Welden & Coluccio Lawyers

ORDERS

1. That pursuant to s.11F of the Family Law Act 1975 the parties and the children [X] born 2006 and [Y] born 2008 attend a reportable child inclusive conference with a Family Consultant provided by the child dispute services of the Federal Circuit Court of Australia, Adelaide on 23 October 2018 at 9.30am with the parties to telephone the Case Coordinator Children Dispute Services on 1300 352 000 to confirm their attendance AND THE PARTIES ARE TO NOTE that s.11G of the Family Law Act 1975 provides that if a person ordered to attend an appointment with a Family Consultant under s.11F fails to comply with that order or any instruction given by the Family Consultant, the Family Consultant must report the failure to the Court and the Court may then make any further orders it considers appropriate.

2. That the matter be adjourned to 28 November 2018 at 9.30am for further consideration.

   
   
   

IT IS NOTED that publication of this judgment under the pseudonym Nardos & Madera is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4651 of 2012

MR NARDOS

Applicant

And

MS MADERA

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a “Rice & Asplund” application concerning two children: [X], who is 12, and [Y], who is 10 years old.  On 20 June last year final orders were made that the mother have sole parental responsibility and that the children live with her and spend some time with the father.  Those consent orders were made against the background of an unfavourable family report – unfavourable to the father – pointing out serious concerns about his parenting capacity and a lack of insight into the best interests of the children.  There were other things as well but I don’t need to mention them. There were good reasons for the consent orders to be made that were made on 20 June.

3. The father almost immediately commenced further proceedings and on 27 October 2017, barely four months after the consent orders, he commenced proceedings seeking to set aside those orders.  The basis on which he sought to set aside the orders was set out in an affidavit deposed by him and filed on 27 October 2017.  I will summarise some of the allegations that were made.  They included him seeking extra time – time not provided for in the consent orders – and the mother’s refusal;  the children apparently watching TV excessively – his information, apparently, obtained from him interrogating the nanny employed by the mother, who was apparently involved in changeover of the children; hearsay allegations from the nanny that the children have been left up to three hours without supervision, without any particulars of the allegation and general complaints about the father’s difficulty in contacting the children.

4. It is clear from the material, I believe, that the father was engaging in very close interrogation of the children about circumstances in the mother’s household. Suspicions would arise, on reading that affidavit, that the father was doing things that might undermine the relationship between the children and the mother.  All, to my mind, indicative of the very issues raised in the family report from 2017 about the father’s limitations of parenting capacity and insight.

5. He filed a further affidavit on 6 June 2018 which has been relied on.

6. Apparently he withheld the children at some point this year.  I did not end up dealing with that, another judge of this Court did, but the children were returned to the mother.

7. In that affidavit – apparently used in support of his application in a case seeking the immediate delivery of the children to him – he refers to a text received from [X] on 23 May 2018 where [X] said, in the text – and I do not think there is much doubt that it was said; it was annexed to the affidavit – things like, “Mum always slaps us.”

8. That is of significance, in my view, because on 6 June 2018, less than a month later, according to records subpoenaed from the Kids Helpline, [X] complained to the Kids Helpline that in the past the mother had slapped her but that had not happened for a while.  That would suggest, if the later statement to the Kids Helpline was true, that the text message from [X] to the father on 23 May, “Mum always slaps us,” was exaggerated, at least.

9. On 5 June the children were apparently interviewed by police after [X] had raised at her school an allegation that she was afraid of her mother.  Apparently [X] was refusing to go home.  The police were called and there was an interview with the police.

10. There is affidavit material to say that the children were interviewed by the Family Violence Unit of the South Australian Police early in July.  No material was before the Court in relation to that.

11. It is alleged by the father that [X] said, around about that time, that she was punched in the eye by the mother. It is noteworthy that that allegation does not occur anywhere else.  It is certainly not included in a text message from [X] to the father and it is certainly not included in any of the complaints to the school on 5 June, the Kids Helpline on 5 June, or the Kids Helpline on 6 June.

12. Counsel for the father complained that he had not been able to obtain a subpoena to the police in relation to the interview because leave would needed to have been sought to obtain a further subpoena.  Leave is commonly sought in this Court to issue additional subpoenas and there is no explanation as to why that was not done.  I certainly do not accept that it was not possible for the father to have that subpoena to the police issued and returned by today.  So what the children told the police I have no idea.

13. The father swore a further affidavit, or deposed a further affidavit, on 12 July 2018.  In that there was an allegation by the father that [X] sent a text message in the following terms:

    Hi, Dad.  This morning when we were leaving home, Mum threw a plate at me and [Y] and told us to catch it.  [Y] was walking past and it nearly hit his leg.  Please don’t tell Mum or ask Mum why she did it;  she would kill me.

14. That text message is not in evidence.  Why it was not in evidence is not explained.  As I said, that allegation, while I think potentially serious, is not something that was raised in [X]’s calls to the Kids Helpline on 5 June or on 6 June.  Curiously, it was mentioned by [X] on 18 June in her conversation with the school or teacher or deputy principal – it’s a little bit unclear – where it is said in a note made on 18 June 2018 “[X] reported to me that the night previously her mother, Ms Madera, threw a dinner plate at [Y]. Ms Madera called out, “Catch,” and threw the plate.  It was a proper plate, not plastic or paper, but it did not break; landed on a couch behind [Y].  The plate went near [Y], about 10 centimetres away but did not hit him.  [Y] was not injured.  [X] confronted Ms Madera (that’s a reference to the mother) and told her it was not safe.  Ms Madera replied to [X] that it did not go near [Y].”  The night before would make it 17 June.  In paragraph 28 of the father’s affidavit of 12 July he claims, as I have already mentioned:  “On 14 June I received a text from [X] stating, ‘Hi, Dad,’ this morning,” etcetera, and then referring to the plate episode.

15. So that puts the plate episode on 14 June, not the 17^th.  It is, of course, possible that the teacher made a mistake.  It is possible that [X] has got her timeline mixed up.  It is possible that [X] is not telling the truth.  I don’t know.  But it is an example of a serious allegation but an allegation surrounded by a degree of concerning inconsistency. 

16. In support of the application of 27 October 2017, the father also relied on an affidavit from a Ms S who was employed by the mother as a nanny.  She made various generalised complaints about the mother, none of which appear to me to have a great deal of substance.  She did complain that the food the mother gave the children was insufficient.  The food apparently included packaged food or pre-bought food as well as food that was defrosted.  I would have thought it would be standard for a working parent to be preparing and refrigerating food and defrosting it when it was required. 

17. It seems to me a very strange thing to include in an affidavit as a criticism.  And the criticism goes on: that the only food available was Greek salads and fruit.  It is very hard to see how that constitutes a criticism. There is reference to one occasion of screaming with the mother screaming, according to Ms S, at [X] in the background during a telephone call. There was no evidence of the mother striking the children or otherwise harming the children.  Various other criticisms were made by Ms S, none of which appear to me to have any substance at all. 

18. Ms S describes [X], however, as “overly dramatic, quick to anger,” which, particularly the “overly dramatic” part of the description, raises concerns in my mind about whether or not [X], as a result of conflict with her mother, is being overly dramatic in her complaints to the father, the school and the Kids Helpline  I have a distinct suspicion that that is the case but this is an interim hearing and it’s not something on which really I can confidently or perhaps even properly arrive at a conclusion. 

19. The matters that appear to me to have some substance are these.  On 6 June 2018 [X] was interviewed at her school. What she said resulted in mandatory notifications by the school to the child welfare authorities and I might say there is little or no evidence that the child welfare authorities have followed up on this. What [X] said was that on 23 May there was violence at home.  She alleged that mum locked them outside the house for hours. 

20. Now, that is to be contrasted with what she, [X], told the Kids Helpline on 6 June where she said that she had been slapped once by her mother, but last year.  Similarly, with the locking outside, she said that had happened last year, not for a while.  It is one of the reasons why I am concerned that [X]’s reports are exaggerated and potentially an attempt to manipulate an outcome that she wants, but, again, I cannot be sure of that. I approach the reports of [X]’s allegations with a great deal of caution. 

21. Nevertheless, at school she continued her complaints, generalised complaints, about the mother.  Said she wanted to run away.  On 5 June the mother attended at the school and was told that apparently the children did not want to leave with her.  The mother was, according to the school reports, shocked and had no idea where this was coming from.  She, in substance, denied the allegations that were being made. 

22. Then there was a discussion with the children, [X] and [Y] and the mother and the deputy principal, Ms K, to talk through what was happening. It is reported then that [X] spoke of the incidents that included [Y] being slapped, that she, the mother, yelled at them, treated them “like slaves and never did anything with them.”  Apparently that continued for some time, and the mother, according to the notes, repeatedly told the children what she had done for them and that rules were important, “dad has no boundaries and that she works all the time to support them.”

23. The mother left and the police were contacted and the mother insisted that the police bring the children home which is what happened.  It is, I think, of significance there that [X] did speak to her mother about her concerns and raised the allegation of [Y] being slapped which is not noted as having been denied by the mother.  I don’t know whether it was or not.  The note is not necessarily terribly complete but the note does say that [X] raised that allegation directly with her mother in front of the deputy principal. 

24. Again, as I say, on 18 June an allegation was made about the mother throwing a plate at [Y] which I have already referred to.  [X] was then assisted or encouraged or advised – I am not sure of the right word – to call the Kids Helpline. There is a subpoena to Kids Helpline for notes which record the substance of [X]’s allegations.  On 5 June she told the member of the Kids Helpline taking the call that she was sick of having to do chores; she was frightened of being hit;  she had been locked outside to do the chores and clean the car.  That is 5 June and that is the extent of it. 

25. On 6 June there was a further call and the note is in more detail and it is said that the mother yelled at the children last night and, of course, that would have been the night after the episode at school with the interview with the deputy principal.  [X] alleged that she had to clean the house all the time, but she had not been locked outside since last year which would tend to suggest her complaints that that was a current problem were exaggerated. It was said that in the past the mother had slapped her, but not for a while, and she mentioned plans to run away.  Counsel for the mother says that what this indicates is conflict between mother and daughter of an unexceptional kind and that [X] is manipulating the situation.  As I have said, I think there is some material that suggests that may be correct.  I am not satisfied that there is real substance in these allegations, nor am I satisfied that they are completely without substance. 

26. It is clear that there is conflict between [X] and her mother. If that was all there was, then there would be no role for this court to intervene further.  However, some of the allegations – throwing the plate, for example; [Y] being slapped and so on, raise some concerns.  The so-called rule in Rice & Asplund is a warning to courts to be vigilant against unnecessary litigation because litigation, as we who work in these courts know, is harmful for children.  It is not in their best interests, generally speaking, and certainly unnecessary or prolonged or protracted litigation is likely to be harmful to them and there ought to be finality to litigation. 

27. I am far from satisfied that the father is demonstrating real bona fides in this case. I think there is material to suggest that he is manipulating the situation as well and there is evidence to suggest that he has limited insight into the likely harm to be caused to these children through unnecessary litigation. However, section 60CC(2) of the Family Law Act1975 says that the primary considerations in determining what is in a child’s best interests are twofold, (a) the benefit of having a meaningful relationship with both of the parents;  and (b) the need to protect the child from being subjected to or exposed to abuse, neglect or family violence, and that second matter is to be given greater weight than the first. 

28. I have reluctantly concluded that I ought to make an order for these children to attend on a family consultant for an interview pursuant to section 11F before I finally dispose of this matter. It occurs to me that it is possible or on the cards – I do not say likely – that in the event that I am satisfied that there is very little in [X]’s allegations that nevertheless there should be some adjustment to the existing orders that would provide some means of helping [X] adjust to her circumstances living with her mother or to provide some support for that relationship. I do not know. That is possible. But as I say, having regard to section 60CC(2)(b), I am satisfied that I ought to at least attempt to obtain some more objective and detailed material about whether or not the allegations have substance. So I’m going to make an order for a section 11F conference with the children.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 13 September 2018